Five Crore Scholarships For Minorities: Wait A Minute, Is That Even Constitutionally Permissible?

Last Tuesday, Shri Mukhtar Abbas Naqvi, India’s Minister for Minority Affairs announced that scholarships shall be awarded to five crore ‘minority’ students over the next five years. Now, as of now, one does not know whether it is a statement of proposed policy or a Cabinet decision that has been taken and awaiting notification. What we can say with certitude is that should the government go ahead with a move like this, the same would fall foul of important provisions of the Constitution of India. Not just that, it would be unjustifiable on purely normative grounds as well.

Difficult to support on constitutional and legal grounds

The Constitutional scheme in this regard is as follows: Article 14 of the Constitution of India states that if classification is to be done between citizens then the same has to be intelligible and that it should also have a nexus with the objective of the government policy/statute/executive order.

Now, if it were to be said that only students belonging to the minority community would be able to get the benefit of these scholarships, and if the stated objective of the scheme is to promote education, then can it be concluded that there is any rational basis to the exclusion of those who do not belong to the ‘minority’? Article 15 (1) also expressly states that the State cannot discriminate against any citizen on grounds ONLY of, inter alia, religion.

Hence, if someone is awarded a scholarship just because he or she is a member of a religious minority community, the same would be Constitutionally untenable. The exceptions to this general doctrine are found in the next provision.

However, even the enabling provision in Article 15 (4) does not empower the State to make provisions for the advancement of ‘minorities’ in the religious sense. The reference made here is to socially and educationally backward class of citizens, scheduled castes and scheduled tribes.

Finally, the only form of positive discrimination in favour of minorities, for which an enabling provision has been made under the Constitution, is the right to establish and administer educational institutions of their choice under Article 30 (1) of the Constitution of India.

In this view of the matter, in the absence of any reference made to ‘minorities’ elsewhere in the Constitution, we must come to the conclusion that this is the only provision under which the government can discriminate in their favour.

Furthermore, to conclude the legal part of this discussion, it would be apposite to quote from a Constitution Bench judgement of the Supreme Court in Board of Revenue v. Arthur Paul Benthall (CA No. 159 of 1954).

In this view of the matter, we can state that if the word ‘minority’ is used elsewhere in the Constitution then it can be conclusively said that the expression ‘socially and educationally backward class’ used in Article 15 (4) of the Constitution of India — which is the other enabling provision — was definitely not meant to encompass minorities within its ambit of positive discrimination. The only provision available to minorities is the one wherein they are mentioned expressly — and that is Article 30 (1) of the Constitution of India under which all that they can do is to establish and administer educational institutions according to their liking.

Difficult to support on normative grounds

On normative grounds also, it is difficult to support such a scheme. Nassim Nicholas Taleb has recently referred to the ancient Greek myth of Procrustes — an inn-keeper who used to either stretch or amputate his guests to fit them to the bed. (A similar attempt was made by Dr. Swamy’s arch nemesis, P C Mahalanobis, while he was director of the Indian Statistical Institute — although in his case, he took out the mean height of all the students at the institute and had the beds constructed accordingly. However, that is a story for another day!) This was before he met his nemesis in the Greek hero Theseus. A one-size-fits-all scheme of scholarship for everybody from a ‘minority’ community sounds equally asinine.

Finally, if the BJP or certain sections therein feel that such attempts shall enable them to create a captive Muslim vote bank for themselves like the Congress did in previous decades, they are badly mistaken. In this regard, I would like to plug an old piece written by yours truly here. Alternatively, they can draw lessons from the fate of Robb Stark, who, in the Game of Thrones, not just lost the ‘Kingdom of the North’ but also his head when he tried to venture outside familiar territory and tried to create a new kingdom for himself in the Riverlands!

To conclude, this proposal is a bad idea from the word ‘Go’ and needs to be junked as expeditiously as possible. A statement in this regard from a senior member of the Cabinet would not be remiss.